The election in all three countries led to attempts to quell street protests with police action. Photo: ABBAS/ATILAY

Scientific articles
Reconciliation rather than revolt
How monitoring complicates perspectives on democratization

In Armenia, Azerbaijan, and Georgia an extended transition period is taking place, monitored and orchestrated by the European Council. Here it is investigated how to understand long-term interference of the international community in the affairs of states that strive to be recognized as democratic.

Published in the printed edition of Baltic Worlds 1:2014, pp 58-71.
Published on balticworlds.com on april 29, 2014

“Cosmopolitan Europe is not a new mechanism for producing unlimited happiness but rather a set of instructions for dealing with ambivalences — ambivalences that are irreducible because they are characteristic of the second modernity.”

Since 1989, the international community has been increasingly engaged in monitoring, measuring, ranking, and rating democracies in order to secure the core values of human rights and democracy. Historically, this kind of activity would be seen as outside interference in the very mechanisms of popular sovereignty, but today it is more or less standard practice and often welcomed. In the name of universal norms, agents representing the international community advice, guide, and ask states to make changes to legislation and practices in line with regional or world standards. The general problem this article will address centers on how to understand long-term interference of the international community in the affairs of states that strive to be recognized as democratic. Is it to be viewed as democratization from the outside? Or are new democracies much more integrated in an international community of values, and interference should be seen as part of institutionalized cosmopolitanism?

The focus of the study is the Council of Europe (CoE) and the member states Georgia, Armenia, and Azerbaijan. The CoE claims to be the guardian of European values and acts as an antechamber to the EU. Before any EU candidacy can be discussed, prospective candidates need to be accepted as willing and able members of the CoE and finish a period of monitoring. The three states above have been under scrutiny since the turn of the century, with no end to the monitoring in sight.

The CoE is a traditional IGO and accession by new states is decided by the existing member states, but the monitoring of membership commitments has been delegated to the parliamentary assembly of the CoE (PACE), which is advisory, but independent. The peculiarity of PACE monitoring is that it is in the hands of a transnational body with members representing the parliaments of Europe, and not experts or diplomats appointed by the states. It opens up countries for scrutiny and interaction based on the promise of a short period of monitoring, but includes the possibility of continuous monitoring if progress is not satisfactory or, in the worst case, a recommendation of rejection is made.

The aim of this study is to explore the continued critical dialogue between a parliamentary assembly with rather unclear authority and its new members. If it is assumed that states in general treasure their sovereignty, and members of a community of democracies ought to respect each other’s constitutional integrity, the long-term monitoring of new members becomes puzzling. This article will investigate the occurrence of interference, the authority employed to ensure interference, and the continuation of a process of interference over an extended period. The study is guided by three research questions: 1) What events led to interference and what were the responses? 2) How did interference affect the authority of the monitoring? 3) Why did the process of interference continue?

Two perspectives on interference

In the literature dealing with the spread of human rights and democratic standards, two broad theoretical perspectives on the role of outside interference can be found. The first and dominant perspective is that interference is best understood as democratization from the outside.1 This assumes a dualism between democratic and authoritarian states and a steady push from activists in transnational civil society to abolish authoritarian rule and liberate societies.2 The logic of interference in the democratization from the outside perspective is that that outside pressure can be employed in the distinct phases of democratization. States are thought to develop from authoritarian to democratic through a brief transition followed by consolidation of the new rules of the game. Outside intervention is considered to have an effect during transition and consolidation to support the forces of democratic change and delegitimize the forces of authoritarian rule.3 This implies that the forces of democratic change and authoritarianism are recognizable and that outside forces are skillful in their use of measures of intervention.

In such a scenario, the role of an IGO such as the CoE is to provide pressure and amplify the demands of democratic states and transnational activist networks. It is considered a leverage point which can add normative power.4 In the literature on the impact of the CoE, the lobbying activities in Strasbourg by human rights organizations is explained by the normative power of the CoE in the field of human rights.5 However, the scholars who have studied the impact of the CoE on the new members are generally disappointed. The organization has been reluctant to use its powers to condemn regimes with poor records of democracy and human rights and is feared to have lost credibility as a human rights champion.6 The interference logic of democratization from the outside thus assumes a revolutionary outsider role of IGOs and a high degree of consistency with clearly defined ideals of human rights and democracy.

A less revolutionary understanding of interference is that it is an aspect of institutionalized cosmopolitanism. Institutionalized cosmopolitanism can be defined as the intentional organizational measures the international community uses in its attempts to deal with risks and uncertainty created by the processes of globalization.7 The cosmopolitan perspective essentially denies the dualism of democratization and assumes a unified whole of self-proclaimed, but flawed, democratic states engaged in a dialogue on the specifics of a proclaimed unity of values enshrined in various human rights treaties. This dialogue is carried out through iteration of universal values and intended to save rather than undermine the foundation of the states’ authority.8 The main difference is thus that, in the cosmopolitan perspective, the conflict regarding interpretation of human rights lies within one legal-political system, not between two opposing systems.

The role of IGOs is to invent new means for addressing postponed or unresolved issues that neither states nor IGOs can address on their own. Often these means are seen as ad hoc temporary measures, but they tend to bring the international and the national systems closer together.9 What institutionalized cosmopolitanism does is open spaces for interaction between competing actors based on the claim of common values. In these spaces of interaction, a dialogue on the new boundaries takes place. Cosmopolitanism as a way of re-organizing the world thus gains authority and re-authorizes democratic states by publicly mediating the universal and the particular. The interference logic of institutionalized cosmopolitanism thus assumes a reconciliatory insider role where the IGO resolves acute problems, and relies more on responsiveness to the concerns of local actors.

Method of analysis

The method of analysis has been to trace the monitoring process through the official documents it creates. The material is reports, resolutions, and transcripts of the debates available on the CoE website. The process has been divided into phases of destabilization and stabilization of the monitoring agreement between PACE and the member state. The monitoring contract represents a common enterprise by the CoE and the member state and remains stable as long as progress is recorded. Destabilization occurs when the rapporteurs express concern over an event which is so significant that they publicly ask for action by the member state in order to show it is still committed to the common cause. Destabilization is most visible in the extraordinary debates concerning specific issues, declaration of “test cases”, and in instances of the application of threats to officially challenge the CoE credentials of the country in question. Stabilization occurs when PACE resolves that the issue is closed. By identifying the actors, issues, and positions on the issues visible in the public documentation, a story about each process has been created. The stories have then been compared in order to make some generalizations about the logic of interference. Only issues concerning domestic politics have been analyzed. In the South Caucasus, PACE also had the goal of regulating the consequences of war and the creation of peace, but although a lot of energy was put into this effort, it will not be dealt with here.

The story of the accession process of Armenia, Georgia, and Azerbaijan

After the end of the Cold War, the CoE became the first of the European organizations to invite members of the former East.11 In rapid succession, the former Warsaw Pact states and the European republics of the former Soviet Union were invited in, and at the same time, the pan-European legal system was strengthened. The rapid expansion caused concerns about the level of commitment to the values of the IGO, and, as an ad-hoc solution, monitoring was put into place. PACE was invigorated by taking on the task of monitoring the new members’ obligations and commitments to the community, and ultimately the power to recommend that CoE exclude them from membership if they failed to keep their promises.12 PACE monitoring of new members is performed by the monitoring committee, but a growing host of specialized and independent CoE bodies also monitor individual conventions or have specialized monitoring roles.13 The Venice Commission, which is the CoE’s expert body on constitutional law,14 and the CoE Commissioner for Human Rights, who systematically address human rights issues all over Europe, deserve special mention in this context. The importance of the work of the PACE monitoring committee is that it collects and places all monitoring activities of the CoE in one context.

The eastward expansion also meant a redefinition of Europe such that it was first and foremost a community of values. The invitation and acceptance of the three South Caucasus states of Armenia, Georgia, and Azerbaijan as members meant that the border of the pan-European legal sphere was extended to cover these three newly independent states with poor records of democracy, human rights, and the rule of law, and with less than full control over their own territories. Inclusion of the three states did not come without resistance. The Political Affairs Committee first argued that the South Caucasus traditionally was a part of Asia and that the CoE thus should not extend that far.15 This, however, led to resistance within PACE. After a crucial debate in 1994,16 it was stated that as long as states neighboring Europe declared a willingness to belong to the community of values they would be welcome.17 Membership thus came on the condition of acceptance of the developing European acquis18 on human rights, democracy, and the rule of law, and of being subjected to monitoring by PACE. The CoE acquis was a new concept that was being developed, and referred to a host of conventions that were to be obligatory for all member states and would form the basis for European consensus in the field of democracy and human rights.

The terms for membership were set in the entry negotiations. During the accession period from 1996–1999, CoE experts assessed the situation, established contacts with the societies, and together with the authorities created a list of commitments and obligations to be enacted after membership. The goal was to make the new states’ legislation and administrative structures harmonize with the ideals and standards embedded in the CoE acquis. What was negotiated was how to make the existing legal system compatible with the European standard and where and to what extent it was necessary to make changes. All three countries were described as having the same general problems. The deeper long-run problem was the mentality of authoritarianism, which created a political culture of unwillingness on the part of the authorities to accept the need for critical debate and a failure from the opposition to provide constructive criticism. There had been serious allegations of election fraud and use of undemocratic measures and certain parts of the opposition in all three countries had refused to acknowledge the results and take part in regulated political life, instead engaging in boycotts and street demonstrations. This had been met with repression from the state, including violent clashes with police and persecution of political opponents. There were also lingering problems of refugees and displaced peoples from the wars, problems of corruption, and the lack of an independent judiciary.

In the accession process, the authorities and the CoE bodies negotiated what needed to be done and what the most pressing concerns were. The assessment was not whether the countries had fulfilled all standards, but whether they were perceived as progressing and willing to cooperate with the CoE and other organizations in the field. The end result was a formal opinion by PACE that set the agenda for the years to come. This was the contractual agreement that governed the relation between PACE and the new member during the continued monitoring process. The spirit was one of inclusion. An often-used phrase was that the countries had reached the “minimum standard”. For the CoE, the inclusion of the South Caucasus meant that the countries had an opportunity to start their journey towards the goal of becoming fully included in the pan-European legal sphere.

The post-accession phase

The minimum standard of human rights practices was tested in the post-accession phase as the more controversial aspects of the membership contract were challenged by the new members. The challenge evolved into a long-term contestation between human rights activists and advocates of the state’s right to self-determination. Each of the three countries challenged the minimum standard of human rights, but on different issues. In Armenia the parliament stalled the abolition of the death penalty, in Georgia the parliament stalled the signing and ratification of the minority rights conventions, and in Azerbaijan the government challenged the allegations that there were political prisoners in the country. These three issues came to define the key problems PACE identified with each of the countries regarding human rights. This does not mean that each of the problems was not present in all three countries, but once focus was set on one set of issues for a particular country, it came to define the continued dialogue.

Armenian reluctance to abolish the death penalty

The death penalty had been abolished in Azerbaijan and Georgia before accession and Armenia was planning to abolish it.20 But in 1999, the year before accession, there was an armed attack inside the parliament on the newly elected government which resulted in the deaths of several ministers. This event stirred up emotions
regarding the death penalty and it became difficult to continue with the abolition effort.21 For PACE and the international human rights movement, the abolition of the death penalty and the creation of a death penalty free zone in Europe was perhaps the most important achievement of the enlargement of the CoE,22 and there was little room for compromise. When PACE debated the first regular report on the progress of Armenia in 2002, the country was given a deadline of June 2003 and threatened with sanctions
if it did not comply.23 Armenia eventually abolished the death
penalty in October 2003,24 but the delay raised concerns that Armenia was not fully committed to change and complied only under pressure.

Georgian reluctance to extend minority rights

Minority rights were high on the agenda and PACE viewed the minority rights conventions as a means to prevent future ethnic conflicts.25 Armenia and Azerbaijan willingly signed the CoE minority rights conventions, but Georgia failed to do so and argued that minority rights were not necessary and perhaps dangerous to the stability of the country.26 The rapporteurs of the monitoring committee did not put pressure on Georgia in the first evaluations, referring to lack of interest from the minority groups themselves.27 The issue was mainly pushed by the Committee of Legal Affairs and Human Rights,28 and pressure to sign the conventions was re-applied to Georgia in connection with the Rose Revolution.29 In 2005, Georgia entered the Framework Convention on National Minorities, but continued to fail to sign the European Convention on Regional and Minority Languages. A minority rights issue which became important was the fate of the stateless minority Meshketian Turks.30 During the accession phase, Georgia made commitments to grant the Meshketian Turks citizenship and reintegrate them into Georgian society.31 The process went very slow, and as it dragged on, the group was eventually granted asylum in the United States, a development that revealed the flaws in the European minority rights regime. In 2005, a PACE resolution again raised the issue,32 and the Georgian government made additional promises and started the process of repatriation. For PACE it was a symbolic test case where Georgia could show its willingness to make progress.

Azerbaijani reluctance to accept allegations about political prisoners

The issue of political prisoners turned out to be the most problematic and divisive challenge for PACE.33 Prisoners who could be described as political were present to some extent in all three countries. During the accession phase, alleged political prisoners in Georgia,34 Armenia,35 and Azerbaijan36 were interviewed by the CoE rapporteurs, and the situation assessed. The situation in Azerbaijan, however, called for further action by PACE. A large number of prisoners had been jailed on uncertain grounds during the years of political instability, and, in the accession negotiation, Azerbaijan committed to releasing or granting a new trial for those prisoners who were regarded by local human rights organizations as imprisoned on political grounds. The organizations created a list of cases that formed the basis for dialogue among Azerbaijan, the CoE, and the NGOs. When Azerbaijan became a member, however, the attitude by the Azerbaijani authorities manifested an unwillingness to accept the views of the NGOs and their role as advocates for alleged political prisoners. To save the situation, the CoE founded a special group to cooperate with Azerbaijani authorities and monitor the implementation of the commitments.37

What followed was a kind of game between the Azerbaijani government, the human rights activists, and the CoE bodies involved. The government released some prisoners, but kept others in prison, and challenged the opinion of the NGOs and the CoE experts, both on the cases and on the definition of political prisoners in general. The human rights organizations, in turn, reported new cases and questioned the retrials. In the middle was the CoE, which was eager to make visible progress, and whose ambition was to make the government and the NGOs cooperate. A number of debates were held and resolutions and recommendations made in PACE on the topic between 2002 and 2013, but the issues were not resolved.38 Instead, the questions remained open and polarized, and the polarization spilled back over into the CoE and PACE. The problem boiled down to the question of which authority PACE should rely on regarding political prisoners: the admittedly flawed, but possibly progressing legal system of Azerbaijan, or the human rights activists in Azerbaijan and their transnational partners. The division led to a failure to pass a resolution on the issue in 2013.39

The phase of politicization

After the post-accession phase, the monitoring became more and more entangled with political processes in the three countries. In 2003, all three South Caucasus states had their first cycle of presidential elections as members of the CoE. Armenia had its elections in February, Azerbaijan in October, and Georgia in November. They all followed the same pattern: allegations of fraud and use of government resources to control the public sphere before and during the election, and attempts to quell street protests with police action and detentions after the elections. In Armenia and Azerbaijan, the government suppressed the protests and stayed in power, but in Georgia, the regime collapsed and gave way to the so-called Rose Revolution. The events in Georgia encouraged the protest movements in the neighboring countries and seriously called into question the stability of the democratic institutions that had been endorsed by the CoE.

The response from the monitoring committee was to attempt to engage both the forces of stability and the forces of change in order to save the agreement of reform in line with European standards. In the first PACE session in January 2004, all three South Caucasus countries were the focus of debate, and resolutions were made on how to proceed.40 The different internal dynamics of the three countries, however, resulted in the process developing in different directions.

Armenian compliance under the threat of exclusion from the Council

In Armenia, the emphasis of PACE was to ensure that the confrontation between government and opposition did not stop the legal reform process. After contested presidential and parliamentary elections in Armenia in 2003, there had been mounting pressure on the government to step down. The opposition called for a referendum of no confidence in the president and organized street protests. However, the elections had been accepted by the International Community, and PACE viewed the events as a result of a lack of procedures for dealing with contested elections.41 Instead, the PACE action in the Armenian case became tied to the reform of the constitution.

A reform of the constitution designed to strengthen parliament and human rights protection had been put before the voters in Armenia in a referendum at the same time as the parliamentary election. After the constitutional reform, a number of legal reforms that were part of Armenia’s commitments would follow. The draft, however, failed to gain enough votes to pass. The whole situation had created a degree of legislative inertia that threatened everything that Armenia had promised PACE. The rapporteurs feared that both government and opposition preferred the status quo, since it preserved an uncertain situation from which both sides felt they could gain.42 In order to secure the continuation of the harmonization process with the CoE acquis, PACE needed to get all the political forces to agree to cooperate.

In April 2004, the escalating confrontation between government and opposition risked getting out of hand and PACE reacted by holding a debate43 and threatening Armenia with sanctions unless the two sides reconciled and reached a compromise before the PACE session in October 2004.44 The government responded by cooperating with the CoE and inviting the opposition, while the opposition refused to cooperate with the government.45 PACE saw this as sufficient progress, and at the follow-up debate in September 2004, a deadline for a new constitutional referendum was set for June 2005.46 The problem was that consensus in society and real political will still were lacking in Armenia. As a sign of will, the referendum was carried out in December 2005, although the opposition saw it as imposed by the West and protested and boycotted it.47 After that came a reform package that harmonized the political legal system with European standards.48 But in the process, the oligarchic system, in which wealthy businessmen had great influence over politics, had become even more entrenched, and polarization between government and opposition continued.The opposition continued to use popular mobilization to challenge the government. After the presidential election in 2008, won by the former prime minister, the opposition again took to the street. The situation quickly escalated and the Armenian government declared a state of emergency and violently beat down the protests. The result was ten dead, both police and protesters, hundreds of detained, and a hardening polarization of government and opposition.50 The events in Yerevan led to a quick response from PACE and a series of debates concerning the functioning of democracy in Armenia.51 Armenia was once again threatened with exclusion from the CoE. Armenia was give until June 2008 to make an inquiry into the events, amend laws on freedom of assembly, release non-violent protesters, and start a dialogue between government and opposition.52 The problem was how to create an inquiry that all sides accepted, and to get the opposition to agree to talk to the government after being shot at.53 Armenia made most of the legal amendments that the CoE asked, and the CoE Commissioner on Human Rights assisted with creating a fact-finding group, but there was little willingness on either side for reconciliation.54

In December 2008, the PACE rapporteurs recommended that Armenia’s voting rights be suspended,55 but the threat was withdrawn after a last-minute visit and new promises from the speaker of the Armenian parliament, and the time limit was extended.56 The chapter on the 2008 events was officially closed from the PACE point of view in 2011.57 By then, most protesters had been released, the opposition had agreed to engage in dialogue with the government, and an investigation into the events had been made.58 The following parliamentary and presidential elections in Armenia in 2012 and 2013 were considered an improvement and did not result in any urgent debates in PACE. The opposition continued to question the election results, but participated in the elections and parliamentary work, continued to hold a dialogue with the government, and did not seek open confrontation on the streets.59 The protest movement after the presidential election was instead transformed into a platform for the local elections in Yerevan.

Georgian anticipation and preemption of PACE concerns

In the case of Georgia, the emphasis of PACE was on curbing the enthusiasm and haste of the new government in its pursuit of reforms, making it commit to the agreement made with the previous government. The new Georgian regime was eager to get the blessings of the CoE on the extraordinary transfer of power and planned reforms. The new Georgian leader, Mikheil Saakashvili, addressed PACE in January 200460 and declared his commitment to European values. He had been a member of the Georgian PACE delegation since the time of the country’s guest membership, and had had his training in human rights in Strasbourg. The main concern of the PACE rapporteurs was that reforms in Tbilisi were proceeding too quickly, and without heeding the advice from Strasbourg and Venice.61 After the first debate in January 2004, a mandate was given to renegotiate the timetable for fulfillment of the commitments.62 A year later, in January 2005, a reviewed set of commitments and a new deadline to show progress was set for September 2005.63 In January 2006, PACE was evaluating the fulfillment of the new agreement.64 By that time, the relationship between PACE and Georgia had stabilized, and Georgia had asked for guidance from the Venice Commission both when it came to constitutional changes and issues of regional autonomy. PACE rapporteurs still believed the anti-corruption reforms risked centralizing too much power in the executive, but were content with the cooperation with CoE experts, and pleased that euphoria had given way to pragmatism.65

At home, however, the new government’s rapid changes were challenged. In 2007 Arkadi Patarkatsishvili, owner of several media outlets and described as Georgia’s richest man, allied himself with the opposition to organize protests and to campaign against Saakashvili in order to bring about early parliamentary elections and constitutional change. The response from the government was first to restore order by declaring a state of emergency, beating down the protests with force, and closing oppositional media, and then to take the initiative by calling snap presidential elections and taking the issue of early parliamentary elections to a plebiscite. Saakashvili won the early presidential election and also initiated a dialogue with the opposition regarding constitutional change and media and electoral laws. The dialogue resulted in electoral law and constitutional reform, and in May, early parliamentary elections were held. PACE reacted to the events by monitoring the elections66 and debating the honoring of obligations by Georgia in January 2008.67 At this session, Saakashvili also was invited, and addressed PACE to explain his actions and take questions.68 The general verdict of PACE was that the actions of the Georgian government to try to restore the dialogue was a step in the right direction, and assistance was offered in the form of legal advice. PACE’s concern with Georgia then shifted rapidly when the war between Georgia and Russia broke out in August.

In 2011, before the upcoming elections in 2012–2013, PACE evaluated the progress in the fulfillment of commitments and obligations.69 Georgia still had not fulfilled its obligations regarding minority rights, but had cooperated with the Venice Commission on constitutional changes to strengthen the role of parliament, and on a new electoral code. The authorities received praise for cooperating with parts of the opposition, but the political climate was still described as charged, and concerns remained regarding the independence of the judiciary. The report nonetheless described the progress made as considerable, and declared the upcoming elections as the litmus test for the consolidation of democracy in Georgia.70

The parliamentary election in 2012 also became a litmus test in the sense that it was to show whether the Saakashvili regime was willing to hand over power to an opponent that had won an election. As in 2007, Saakashvili was challenged by a man described as the richest man in Georgia. Billionaire Bidzina Ivanishvili created an election platform a short time before elections, and became the main contender. Unlike in 2007–2008, both the challenge and the response from the government were made within the framework of the laws. In the end, the contender won the election, Saakashvili admitted his party was defeated, and Ivanishvili became prime minister. The cohabitation of the new prime minister and the president was not without friction and the matter was also taken to Europe. Both Saakashvili71 and Ivanishvili72 went to Strasbourg and addressed PACE and answered questions in 2013 and presented different stories about the state of human rights and the rule of law in Georgia. Like well-integrated members of the CoE, both, however, invited more scrutiny and asked for more cooperation with the organization. Saakashvili furthermore stepped down from office when his term as president was over.

Azerbaijani success in dividing PACE

In Azerbaijan, the emphasis was on getting the increasingly powerful government simply to harmonize with the CoE at all. By 2002, Azerbaijan had carried out most of its formal commitments, but still had a very unbalanced political system with a strong presidency and a parliament without real power to control the executive, and the country did not seek advice from the CoE. A constitutional referendum was held in August 2002 without previous consultation with the CoE, observation from the international community, or proper public debate in the country.73 After the election of Ilham Aliev in 2003, protests led to several deaths and hundreds detained, and it became clear to PACE that the country was far from living up to its promises concerning human rights and democracy, and PACE called upon the authorities to inquire into the events, release detained protesters, and make legal changes.74

The issue was closely tied to the contested issue of political prisoners. The unwillingness to recognize this problem resulted in an examination of the wider situation of human rights in Azerbaijan. The question for PACE was: With whom should they cooperate? The parliament was not seen as a proper parliament75 and the opposition was marginalized.76 The remaining partners were the NGOs or the government, both of whom distrusted each other. The NGOs were the ones that the rapporteurs perceived as reliable,77 but hope was put in the new government which was said to represent a new breed of technocrats.78 Aliev had led the Azerbaijani PACE delegation and was well aware of the commitments and obligations. The tone in the reports was also understanding, and the threat of sanctions was lifted in the fall of 2004. Azerbaijan had a special situation and could not be expected to cooperate more until the role of the parliament was strengthened.79

As parliamentary elections neared, the media climate was worsening: a prominent journalist was murdered, and parallels were made to the situation in Ukraine before the Orange Revolution.80 PACE therefore declared that parliamentary elections of 2005 were to serve as a “decisive test case” to determine whether Azerbaijan had made enough progress.81 Before the parliamentary election, the authorities acted in line with CoE advice and lifted bans on rallies and allowed air time for the opposition, but it was clear that there still was an unequal playing field and instances of election fraud. The results were contested, but with less violence compared to the protests in 2003. Efforts by the opposition to organize large-scale protests were hindered, and the Azerbaijani authorities responded by organizing a rerun of elections in ten constituencies. Most of the opposition boycotted the re-run and, for the rapporteurs of the monitoring committee, the re-run was not a sign of progress. Azerbaijan had failed to produce fair elections and had to be sanctioned.82 The Azerbaijani delegation, however, contested this assessment, claiming that the election represented progress when compared to previous elections, and noted the significance of cultural differences from the West, and the responsibility of the opposition to accept the rules.83

The whole issue of whether or not to sanction Azerbaijan led to what has been described as a “showdown between activists and apologists” in PACE in January 2006.84 The main question was whether it was enough progress to organize the rerun in the ten constituencies. The case against sanctions was that President Aliev had done what was asked and that, compared to how things were before the cooperation between the government and the CoE experts, the situation was improving. The case for sanctions was that the general picture was a deteriorating situation concerning human rights in the country, and that the CoE’s credibility was at stake.85 Both the Monitoring Committee and PACE voted against sanctioning. This meant that the committee continued to follow up on the issue, but that the momentum was lost for putting pressure on the government.

The Azerbaijani government was willing to cooperate with the Venice Commission and the CoE experts on its own terms. The progress report of 2007 recorded progress in combating corruption, engaging in prison reform, training judges, reforming local self-government, and freedom of assembly.86 But these measures were also often described as one step forward and one step back. The overarching goal of mending relations between the authorities and the opposition and NGOs remained. After the parliamentary election in 2005, the opposition was even more marginalized and the general human rights situation continued to deteriorate. The main problem for the relations between the CoE and Azerbaijan still concerned political prisoners, and the Committee for Legal Affairs and Human Rights wanted a new rapporteur on the issue, which the Azerbaijani government was openly against.87 The Monitoring Committee instead held a new debate in June 2008 on the broader topic of the functioning of democracy.

The upcoming presidential election was declared a new test case for democracy, and Azerbaijan was asked to revise the electoral code and laws on freedom of assembly according to Venice Commission advice, and to guarantee the right of the opposition to rally and campaign. The opposition was asked to engage in dialogue with the authorities and take part in the electoral process.88 The government made most of the suggested legislative improvements, but the opposition did not participate in the elections. Ilham Aliev was reelected with 88.7% of the vote and a 75% turnout.89

PACE returned to the issue of the functioning of democracy in 2010, as the next parliamentary election was coming up. The opposition was weaker and less active than ever, and the conditions for political activity were becoming even more constrained. The government also continued making controversial legal and constitutional reforms without asking for consultation. A constitutional reform was made in 2009 through referendum, which among other things would abolish the two-term limit of the president, without asking the Venice Commission in advance and without inviting international observers. The Monitoring Committee instead asked the Venice Commission for an opinion, PACE sent a small delegation to be present at the referendum, and the laws were submitted before implementation.91 Azerbaijan’s democratic credibility was still tied to the question of resuming the dialogue between government and opposition.92 But the development in the country went in the
opposite direction. In its evaluation of the election, PACE could not record any meaningful progress in the democratic development of Azerbaijan. The opposition failed to gain any seats in parliament and instead attempted to organize outside the parliament.93

In 2012, Azerbaijan’s overall progress on honoring obligations and commitments was assessed for the first time since 2007. By now, the conflict between the majority in the Monitoring Committee and the Committee of Legal Affairs and Human Rights was more visible than ever, and pressure was brought upon the PACE committees both from coalitions of international and Azerbaijani human rights NGOs and from the Azerbaijani government and parliamentarians. The committees presented contradicting reports regarding the credibility of Azerbaijan as a willing partner in the realization of European values,94 and, for the first time, the Monitoring Committee asked PACE not to vote for the resolution from the Committee of Legal Affairs and Human Rights.95 The report was not accepted, and the more mildly worded resolution of the Monitoring Committee was approved instead. This meant that the majority in PACE continued to support the position that recognized Azerbaijan as a willing participant in the attempt to adhere to European values.

What events led to interference and what were the responses?

The two major types of questions considered in this study were PACE concerns over the progress of human rights and concerns over the functioning of democracy. The issues were intertwined, yet also involved distinct sets of actors, and elicited responses with different logics. Human rights issues led to more outside pressure, whereas issues concerning democracy tended more to involve local actors.

The actors initiating interference on human rights grounds were primarily coalitions of PACE delegates in the specialized committees and the transnational human rights movement. The monitoring process served as an arena for the global struggle to push for stronger protection of human and minority rights, and the accession phase was a moment were the activists could and did bring forward specific cases and enshrine them in quasi-legal documentation. The success of the coalitions lay in their ability to lobby and gain concessions from the governments in concrete cases. The death penalty was abolished, weak minority groups like the Meshketian Turks were protected, and political prisoners recognized and released. Where they failed, it was because of a lack of resonance in the organs of representative democracy in the monitored countries. When the issues became polarized between transnational human rights activists and national delegations, it became difficult to form majorities among parliamentarians in PACE against their fellow parliamentarians in the monitored countries.

The actors initiating interference on the functioning of democracy were the political opposition with their protests and the governments seeking to avoid blame. Elections provided regularly occurring tests of the functioning of democracy that required political peace in order to be passed. For a country to be viewed as a mature democracy, it was crucial that the opposition accept the rules of the game and be willing to be a part of the election process. The issues of concern to PACE focused on the handling of protests, but also involved much larger issues of freedom of expression and of assembly, and the creation of a balanced field of political competition and credibility of the political institutions. The PACE responses to crisis succeeded in gradually finding and amending flaws in election laws and campaign frameworks, but failed to create acceptance for the general rules of the game.

The minimum required response from governments to both human rights and functioning of democracy issues in the monitoring process was to invite CoE experts and ask for advice. This was often enough for other governments and parliamentarians. Bringing new issues to the agenda was also difficult. The human rights issues that were raised to the level of open debate were all matters that were raised in the negotiation procedure. Once inside, the governments had better chances of protecting themselves against new allegations of human rights abuse. Functioning of democracy issues, on the other hand, had a regularly occurring pattern due to the election cycles. Every election thus provided an opportunity to test and evaluate the government’s and the opposition’s willingness to show progress.

If closing issues can be interpreted as success and keeping issues unresolved means failure, the success of the monitoring process was the ability to interact, react fast, and tie moments of crisis to PACE concerns and assure cooperation by threatening the countries with CoE exclusion. The risk of losing PACE credentials made the governments more eager to cooperate with CoE experts and sometimes comply with CoE advice. The failure of the process resulted from the dependence on an opposition and a government in the monitored countries that were willing and able to engage in meaningful dialogue. The more unbalanced the relation inside the country was, the less interest both government and opposition had in cooperating and closing the process. The consequence of the failure to close the process was that different points of reference evolved in the different countries when PACE made judgments on progress. The countries thus came to be measured against specifically tailored yardsticks.

Armenia developed a tradition of waiting for advice and implementing advice only under pressure. The country was cornered into a situation where implementing the advice of the CoE became the only way out. PACE’s point of reference became Armenia’s polarized political environment, which included the resulting legislative inertia. Armenia became more responsive to CoE evaluations than the other countries and received more threats of exclusion from the Council. PACE’s stake in the Armenian reforms were thus comparatively higher than in the other countries, and PACE sometimes was associated with the government.

Georgia developed a tendency to anticipate European reactions and make reforms that were good enough to pass. Georgia went ahead with reforms and asked for their approval based on the same or even higher standards than the CoE required. PACE’s point of reference became Georgia’s own high ambitions. In this way, Georgia could to a large extent set its own agenda, but the discourse of European values became more internalized in Georgia. PACE could function as an arena for internal positioning between the uneasily co-habiting prime minister and president.

Azerbaijan developed a tradition of ignoring advice and turning the problem back to PACE. Azerbaijan avoided and resisted interference to the extent that the point of reference for PACE became Azerbaijan’s strong insistence on self-determination and the risk of contradictions with the CoE acquis. Progress in Azerbaijan was what the government agreed to, and whether or not Azerbaijan was progressing became mainly a point of contest between groups in PACE that were separate from the forces dominating domestic politics in Azerbaijan. The majority in PACE and the Monitoring Committee did not want to take on the role of a human rights champion in open conflict with a member state.

How did interference affect the authority of the monitoring?

As a system of values, PACE monitoring was characterized by a lack of certainty and by built-in inconsistencies. All CoE members were bound by the CoE acquis, but PACE did not have the legal authority to interpret the acquis; that was the role of the European Court of Human Rights. Neither did PACE have political authority to interpret the acquis — that belonged to the decision-making body of the CoE, the Committee of Ministers. The authority of the PACE monitoring process was founded on a temporary contractual agreement, and, like any contract, it is made by parties in a certain historical situation which has to be reenacted and recalled. In a sense, monitoring created double standards. Monitoring essentially meant that the monitored states were obliged to ask for and listen to advice when they made certain legal reforms, and not to stray too far from the CoE acquis. In cases where PACE met resistance, it could only remind the new members of their previously stated willingness to be part of the process and the contractual fact that the new members had agreed to accept this situation. Monitoring did not mean that PACE had extraordinary authority to interfere in issues outside the contract.

PACE, however, had taken it upon itself to develop the acquis, and the monitoring processes became a battleground over the acquis. The communication on whether the new member fulfilled its commitments was part political and part legal, and depended as much on formations of transnational coalitions for lobbying as on legal reasoning. This meant a constant testing of the limits of the human rights acquis, which brought forth the irresolvable political and ideological conflict between human rights activists and advocates of national self-determination. Monitored self-regulation provided an uneasy compromise between human rights universalism and the particularism of national self-determination. As the processes dragged on, the contest created uncertainty over how long the period of monitored self-regulation would last, and what it actually means, but the process was not derailed.

The uncertain authority of PACE monitoring led to a process that was rather selective in its responses to events. The selection of issues to act upon became based on the historical legacy of the monitoring procedures. The selectivity of the system was, however, the key to the success of gaining entry to and integrating with the new member states’ political legal systems. Failure was avoided by the postponement of all conflicts that could endanger the contract, and in the meantime relied on slowly building webs of influence where possible.

Why did the process of interference continue?

The experience of the monitoring of the South Caucasus countries showed that the CoE always extended its democratic credit to the monitored countries. Once the CoE had defined itself as a community that wanted to spread its values, it was better to avoid losing a potential member forever than temporarily losing a struggle over an issue. As PACE monitoring evolved, the communication involved more independently acting bodies both inside and between the monitored country and the CoE. The more evidence that accumulated the harder it became to close the process either by declaring success or failure. So it continued by responding to events and forming complex webs of interaction between CoE experts and various bodies in the monitored countries. The PACE majority was willing to forgive the unforgivable as long as members showed some kind of promise of future cooperation. PACE monitoring thus continued to grow and evolve because states agreed to be scrutinized in difficult times and in response were provided with much needed democratic credibility. The process bound lender and debtor together. Following CoE advice lent authority to the state institutions under pressure, and the CoE got a stake in their continued existence.

The process often failed to create a consistent voice for human rights and continued to extend democratic credit to members that progressed very little. But re-authorizing flawed democratic states enhanced both the authority of the CoE and the authority of the monitored states. PACE lent credibility and in the process built a stock of democratic credibility debt among the new members, to which remaining a part of the CoE clearly meant something. The logic of the extension of credit and the continued monitoring was an acceptance of a continued CoE gaze and the slow weaving together of the CoE’s and the members’ legal-political systems.

Democratization from the outside and institutionalized cosmopolitanism

The experience of the monitoring processes shows that PACE interference first led to legal harmonization of human rights and democracy standards, but as the process continued, it also led to politicization and disunity regarding what the values actually meant, as well as diverging trajectories among the new members.

When monitoring began, PACE interference looked like democratization from the outside. The profile of the IGO was high, and the desire for inclusion pushed the new members to make changes and to commit to changes that they otherwise probably would not have made. Issues of minority rights, abolishment of the death penalty, and recognition of political prisoners were successfully pursued by transnational activist networks that used the authority of the CoE as leverage. The logic of interference was that of an outsider attempting to make revolutionary changes. However, as the states gained membership, this logic changed.

When mass protests against electoral fraud and corruption destabilized the three countries, the IGO became involved in the messy politics of the new member states. PACE interfered to save the agreement on commitments and ended up attempting to reconcile governments that distorted the functioning of democracy and opposition movements that saw the rules of the game as deeply unfair and did not want to participate. The logic of interference was that of an insider attempting to save the institutions of interaction. In line with institutionalized cosmopolitanism, PACE intervened to avoid the risk of losing a member, and created new means of interaction by initiating dialogues on concrete legal issues. Questions of concern that could result in declarations of the states as either democratic or authoritarian were transformed into processes of reforming flawed democracies that were both democratic and authoritarian at the same time, processes in which the states could make progress at their own pace.

The cosmopolitan perspective on IGO monitoring thus transforms the view on the democratic state from one of being understood as an independent entity to one of being understood as a constituent part of the European matrix of institutionalized cosmopolitanism. This closes the expectations of interference to impose radical change but opens a prospect for interference to maintain a continuing critical dialogue on the legal and political consequences of belonging to a community of universal values. The crisis of the democratic state is likely to continue, and all forms of helping to heal societies and restore credibility are therefore likely to be in demand. It is not likely to stir up mass excitement, but it becomes helpful once the dust has settled and when people come out to pick up what remains in order to go on with their lives, despite the failed promises. In a world of failing democratic promises, governments thus may, after trying all other alternatives, embrace cosmopolitanism and accept an institutionalized external bad consciousness. ≈

References

Laurence Whitehead, The International Dimension of Democratization — Europe and the Americas (Oxford University Press: Oxford, 2001).

For a description of CoE enlargement see Denis Huber A decade which made history. The Council of Europe 1989–1999 (Council of Europe Publishing: Strasbourg, 1999).

For a concise description of the procedure see Jan Kleijssen “The Monitoring Procedure of the Council of Europe’s Parliamentary Assembly” in Gudmundur Alfredsson et al. (ed.) International Human Rights Monitoring Mechanisms, (Martinus Nijhoff Publishers: Leiden 2009).

For an analysis of all CoE monitoring procedures see Renate Kicker and Markus Möstl Standard-setting through monitoring? The role of Council of Europe expert bodies in the development of human rights (Council of Europe Publishing: Strasbourg, 2012).

PACE Doc. 6975, On the Enlargement of the Council of Europe report by the Political Affairs Committee, December 13 (1993).

PACE verbatim record, Enlargement of the Council of Europe, October 4 (1994).

PACE Recommendation 1247, On the Enlargement of the Council of Europe, October 4 (1994).

For a discussion on the CoE acquis see Lawrence Pratchett and Vivien Lowndes Developing democracy in Europe — An analytical summary of the Council of Europe’s acquis, (Council of Europe Publishing: Strasbourg 2004).

The key conventions were: the general human rights convention ECHR and its protocols the anti-torture convention ECPT, the minority rights conventions FCNM and ECMRL, the local democracy charter ECLSG, several conventions concerning transborder cooperation on criminal matters the social charter ESC. These conventions set the basic standard form for European democratic stateness and transnational cooperation between state bodies. They are also connected to several independent organizations which monitor and develop the standards and cannot be described as a unified model. Nevertheless it sets a standard for how states ought to be organized and behave and it required compatible legal and political system in order to be functional. The standard is based on strong legal protection for individuals, non-state organizations of civil society, and state institutions able to control the use of executive power, such as parliament, local authorities, courts and ombudsmen. In practice this required the breaking down the centralized formal state structure of the Soviet tradition, replacing it with a decentralized structure and connecting state institutions to cooperation and monitoring bodies on the European level. Harmonizing with the European acquis on human rights also entailed a whole range of reforms including a criminal code that abolished the death penalty and de-criminalized homosexual relations between consenting adults, laws that protected and regulated the freedom of media, political parties, religious organizations and NGOs, laws that gave greater responsibilities and independence to local authorities, laws that strengthened the independence of the court system vis-à-vis the state prosecutors, laws that demilitarized the prison administration by transferring responsibility from the ministry of the interior to the ministry of justice, laws that strengthened the legislature vis-à-vis the executive, and the creation of an independent ombudsman institution. It was also assumed that it also meant a change of mentality among the people and politicians accustomed to the Soviet tradition of centralized responsibility.

PACE Doc. 8747, Armenia’s application for membership of the Council of Europe, report by the Monitoring Committee, May 23 (2000) II: 82.

PACE Doc. 9542, Honouring of obligations and commitments by Armenia, report by the Monitoring Committee, September 13 (2002) II: 134–148.

Jean Petaux, Democracy and human rights for Europe: The Council of Europe’s contribution, (Council of Europe Publishing: Strasbourg 2009) 244–252.

PACE Resolution 1304, Honouring of obligations and commitments of Armenia, September 26 (2002).

PACE Doc. 10027, Honouring of obligations and commitments by Armenia, report by the Monitoring Committee January 12 (2004) II:123–141.

For a discussion on the European approach to national minority rights see Will Kymlicka, Multicultural Odysseys — Navigating the New International Politics of Diversity (Oxford University Press: Oxford, 2007) 173ff.

The Meshketian Turks were a minority group from Georgia that was forced in exile in Central Asia by Stalin and denied the right to return. After the end of the Soviet Union they were again forced in exile and lived as stateless refugees mainly in Russia and Azerbaijan.

PACE Recommendation 1335, On the refugees and displaced persons in Transcaucasia, adopted by PACE June 24, (1997) 10 ix. B; PACE Opinion 209, Georgia’s application for membership of the Council of Europe, adopted by PACE January 27 (1999) 10.ii.e.

PACE Resolution 1428, The situation of the deported Meskhetian population, adopted by the Standing Committee March 18 (2005).

For an in depth analysis of the division within PACE see European Stability Initiative, Caviar Diplomacy: How Azerbaijan silenced the Council of Europe (European Stability Initiative: Berlin, 2012) www.esiweb.org.

PACE Doc. 8275, Georgia’s application for membership of the Council of Europe, report by the Political affairs committee, December 2 (1998) II: 62–63; PACE Doc. 8296, Georgia’s application for membership of the Council of Europe, opinion by the Committee on Legal Affairs and Human Rights, January 12 (1999) 27–38.

PACE Doc. 8756, Armenia’s application for membership of the Council of Europe, opinion by the Committee on Legal Affairs and Human Rights, June 6 (2000) II:12, 20.

PACE Doc.8757, Azerbaijan’s application for membership of the Council of Europe, opinion by the Committee on Legal Affairs and Human Rights, June 27 (2000) II: 28–32; PACE Doc. 8748, Azerbaijan’s application for membership of the Council of Europe, opinion by the Political Affairs Committee, May 23 (2000) II:63–65.

PACE Doc. 9310, Political prisoners in Azerbaijan, report by the Committee on Legal Affairs and Human Rights, January 11 (2002); PACE Doc. 9545 Honouring of obligations and commitments by Azerbaijan, report by the monitoring committee, September 18 (2002) II:83–95, Appendix III.

PACE Resolution 1272, Political prisoners in Azerbaijan, January 24 8 (2002); PACE Resolution 1359, Political prisoners in Azerbaijan, January 27 (2004); PACE Resolution 1457, Follow-up to resolution 1359 (2004) on political prisoners in Azerbaijan, (2005); PACE Recommendation 1711, Follow-up to resolution 1359 (2004) on political prisoners in Azerbaijan (2005); Doc. 13079, The follow-up to the issue of political prisoners in Azerbaijan, report by the committee on Legal Affairs and Human Rights, A. Draft resolution, December 14 (2012).

PACE verbatim records, The honouring of obligations and commitments by Azerbaijan and the follow-up to the issue of political prisoners in Azerbaijan, January 23 (2013).

PACE Doc. 13079, The follow-up to the issue of political prisoners in Azerbaijan, report by the Committee on Legal Affairs and Human Rights, December 14 (2012); PACE Doc. 13084, Honouring of Obligations and commitments by Azerbaijan, report by the Monitoring committee, December 20 (2012).

PACE verbatim records, The honouring of obligations and commitments by Azerbaijan and the follow-up to the issue of political prisoners in Azerbaijan, January 23 (2013).

The decision of commenting on this article was quite difficult, particularly because its subject, from a historical perspective, is still relatively new. However, I think the author raised some really good points about the cultural challenges within the Council of Europe. I think one of the most important points that were raised was the problem of political prisoners in all three countries from the Caucasus. Although this problem was reflected differently by all three nations, all three countries seem to have inherited and consequently transformed this practice, as well as many others, from the Soviet state. It is part of their own political culture, perhaps denying the European concept of ”institutionalized cosmopolitanism”, which defines the human rights debate as an internal problem within a cohesive democratic framework.

Even within their respective parties, all three countries seem to disagree on the concept of democracy, leading to disarray within their own national political spheres. How can the CoE establish a productive dialogue (with less legal power I might add) with any of these countries when these can't even hold proper elections, one of the cornerstone of democracy? These undemocratic events can't be interpreted as a failure on the part of neither the CoE nor the individual country, but as part of the state transition from deeply rooted authoritarian practices to democratic ideals. This process can't be carried out by an outsider, the CoE can only offer guidance. The continued reliance on punishments and threats as a facilitating device is yet another aspect that needs to be explored, particularly its long-term effect.

Leaving aside the obvious problems faced by these newly democratic nations, we now take a look at Europe as a democratic system. According to the article, the CoE continues to insist on the realization of European values as the CoE universal goal. However, are these European democratic values shared by all European states? How do European nations react when these values stand in the way of their respective national interests? Not to long ago (1994) France was involved in one of the most controversial debates on human rights since the creation of the CoE.

The Rwanda genocide (to put it in rather simplistic terms, the concept of genocide has been criticized as being too generic) clearly illustrates how democratic values can be bended to fulfill their own respective national (or even parties') interests. If there isn't a cohesive concept, and more importantly, a consistent application of these democratic values by well-established European nations, how can we expect those newly democratic nations from the Caucasus not to falter in their quest for democratic maturity and political soundness?

Anders Nordström has a Ph.D. in political science and is post doctoral researcher at CBEES since 2010. His main specialization is European politics, transnational regulation and international organizations monitoring of states with a focus on the Council of Europe and the Eastern Enlargement of this organization.

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